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Marriage in England: favouring the lex fori

Published online by Cambridge University Press:  02 January 2018

C. M. V. Clarkson
C. M. V. Clarkson*
Affiliation:
University of Bristol
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Extract

The orthodox rules on validity of marriage at common law are that formal validity of marriage is governed by the lex loci celebrationis and essential validity of marriage (or capacity to marry) is governed by the personal law, ie the law of domicile. Neither the lex loci celebrationis nor the lex fori ought to have any interest in such questions of essential validity.

According to such orthodoxy there are two rules of English law that are suspect and in need of reconsideration. First, there is (arguably) the rule that the parties to a marriage do not need to have capacity to marry by the lex loci celebrationis when they marry abroad but do need such capacity when the marriage takes place in England. The second rule subject to attack is the notorious ‘exception’ based on Sottomayer v de Barros (No 2)2 which allows a foreign incapacity to be ignored when an English domiciliary marries in England, but not when the marriage takes place abroad.

Type
Research Article
Information
Legal Studies , Volume 10 , Issue 1 , March 1990 , pp. 80 - 90
Copyright
Copyright © Society of Legal Scholars 1990

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References

1 Cheshire and North, Private International Law (11th edn, 1987) Ch 21; Dicey and Morris, The Conflict of Laws (11th edn, 1987) Ch 17. There is no need in this article to enter the controversy as to the meaning of ‘domicile’ here, for instance whether it means the domicile of each party at the date of the marriage (the dual domicile doctrine) or the ‘marriage domicile’ (the intended matrimonial home doctrine) or any of the several other suggested solutions to the problem.

2 (1879) LTR 5 PD 94.

3 Cheshire and North, op cit supra n 1, at p 585.

4 Falconbridge, Conflict of Laws, 711.

5 See the policy options set out in Law Commission Working Paper No 89, ‘Private International Law Choice of Law Rules in Marriage’, paras 3.18–3.50.

6 This approach has been adopted in Commonwealth decisions (Reed v Reed (1969) 6 DLR (3d) 617 [Canada]; In the Will of swan (1871) 2 VR (IE & M) 47 [Australia]; Re Estate of Hewitt, unreported, cited in D. Bradshaw, ‘Capacity to Marry and the Relevance of the Lex Loci Celebrationis in Commonwealth Law’ (1986) Anglo-Am LR 112). The opposite view was however espoused in the English case of Breen v Breen (1964) p 144.

7 It was reasoning such as this that underlay the leading decision of Brook v Brook [1861–73] All ER Rep 493.

8 Hartley, ‘The Policy Basis of the English Conflict of Laws of Marriage’ (1972) 35 MLR 571, 574.

9 Ibid at p 576–577.

10 Law Com,op cit supra n 5, para 3.41. See also, Jaffey, ‘The Essential Validity of Marriage in the English Conflict of Laws’ (1978) 41 MLR 38 at 47.

11 Law Com, op cit supra n 5, para 3.43.

12 Ibid.

13 Of course, there might be situations where non-compliance with the essentials was observable and therefore it could be argued that the locus celebrationis does have a legitimate interest in the validity of marriage. However, it is likely that this would only be so in extreme cases where public policy would achieve the same result as allowing the lex locus celebrationis a role here — for example, children marrying or homosexual marriages. Further, public policy would be invoked to prevent the application of an offensive rule under the lex loci celebrationis, for example, a prohibition on marriages between persons of different races or nationalities.

14 At p 586. See also the Law Commission (op cit supra n 5) who claim that ‘normally both the formal and substantive requirements for marriage under the law of a part of the United Kingdom must be fulfilled by persons who marry in that part.’ (para 3.42).

15 Op cit supra n 1, Rule 71, Exception 2.

16 At p 638.

17 (1963) 42 DLR (2d) 622.

18 Id p 637.

19 Scotland: Marriage (Scotland) Act 1977, ss 1(2), 2(l)(a); Australia: Marriage Act 1961, s 10.

20 Sottomayer v de Burros (No 2) (1879) 5 PD 94.

21 It is however conceded that this is difficult to substantiate with hard judicial authority as in the cases it always tends to be the English domiciliary that is incapacitated and therefore the invalidating law coincides with the lecx fori.

22 This exception does not apply to those situations covered by the Marriage (Enabling) Act 1960, s 1(3).

23 Chetti v Chetti (1909) P 67, 81–88; Ogden v Ogden (1908) P 46, 74–77; the decisions of Vervaeke v Smith (1983) 1 AC 145 and Perrini v Perrini (1979) 2 All ER 323 are both consistent with the rule with Sottomyer v de Barros (No 2) being referred to by the Court of Appeal in the former instance ((1981) Fam 77 at 122 and being a case also cited in the latter. The principle has been enshrined by Dicey and Morri 's as Exception 3 to Rule 71).

24 Op cit supra n 5, para 3.42. Fentiman supports application of English law as the lex loci where there is no matrimonial home or ‘best connected law’ and that this is ‘sound policy and not chauvinism’ (Fentiman, ‘The Validity of Marriage and the Proper Law’ [1985) 44 CLJ 2 56, 274).

25 Jaffey, Introduction to the Conflict of Laws (1988) p 28.

26 Morris, The Conflict of Laws (3rd edn, 1984) p 164.

57 Cheshire and North, op cit supra n) 1, p 585.

28 McLeod, The Conflict of Laws (1983) p 263.

29 Kahn-Freund, Selected Writings (1978) p 238.

30 Dicey and Morris, op cit, supra n 1, p 94.

31 Kahn-Freund, op cit, supra n 29 at p 234.

34 Provided, of course, that the law did not offend fundamental English conceptions of justice, morality or human liberty and freedom of action. See, further, Cheshire and North, p 134–135.

33 Wolff, Private International Law (2nd edn) p 168; Kahn-Freund, op cit, supra n 29 at p 234; Godard v Gray (1870) LR 6 QB 139.

34 In Saxby v Fulton (1909) 2 KB 208 a contract of loan for the purpose of gambling in Monte Carlo was upheld; see also Robinson v Bland (1760) 2 Burr 1077.

35 (1859) 8 CB (NS) 861.

36 [1954) 2 All ER 213.

37 See also Tredtex Trading Corpn v Credit Suisse (1982) AC 679 where an assignment relating to an English cause of action was void on grounds of champerty.

38 Section 26.

39 R v Bham (1966) 1 QB 159; Qureshi v Qureshi (1971) 1 All ER 325.

40 (1866) LR 1 P&D 130.

41 Bamgbose v Daniel (1955) AC 107.

42 See, for example, Sowa v Sowa(1961) p 70.

43 Graveson, The Conflict of Laws (6th edn) 254.

44 It is interesting that one of the arguments suggested by the Law Commission for allowing matrimonial relief to polygamously married spouses was that it would help reduce the number of polygamous marriages in the UK on the basis that such persons would be able to get divorces! See Law Commission, ‘Polygamous Marriages’, Law Com No 42, para 37.

45 Scoles and Hay, Conflict of Laws (1984) p 416.

46 Id.

47 Op cit, supra n 29.

48 Law Com, op cit, supra n 5, para 3.46. The Law Commission put forward further arguments in support of the rule in Sottomayer v de Burros (No 2): (a) justice to English domiciliary marrying in England; (b) upholding validity of marriage; (c) other countries adopt similar solutions; (d) convenience and cost; (e) rule has caused no hardship over last 100 years.

However, they provisionally concluded, ‘on balance’, that the rule should be abolished (para 3.48). No reasons for such proposal are suggested other than that the rule is ‘illogical’ and ‘cannot be supported from the standpoint of principle’ (para 4.46).